Letagara v Asavalaka [1998] SBHC 32; HC-CC 169 of 1996 (22 June 1998)

GH COURT OF SOLOMON ISLANDSLANDS

Civil Case No. 169 of 1996

LESLIE LETAGARA

class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> v

n lang="EN-GB" style="font-size: 12.0pt; font-family: Times New Roman"> ANTHONY ASAVALSAVALAKA

High Court of Solomon Islands
Before: Lungole-Awich, J
Civil Case No. 169 of 1996

Date of Hearing: 11
Date of Judgment: 22.6.98

Counsel: MrNori for Plaintiff;
Mr. D. Hog for Respondent

J JUDGMENT

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> LUNGOLE-AWICH J.: The plaintiff in this case which was commenced by originating summons at the High Court, is Mr. Leslie Letagara. His case is against Anthony Asavalaka, the defendant. Although it has not been stated, Mr. Legatara sued on behalf of himself and his clan or line and Mr. Asavalaka was sued on his own behalf and of his clan or line. The subject matter of the case is Dola Land in Choiseul Province.

Des over Dola land have a very long history. The plaintiff siff says there was court case over Dola land as early as 1926, but it is of no use to this case because the record of the 1926 case was not produced. The case better known by both parties is a 1951 case before a District Officer’s Court which at the time had jurisdiction. Following that there was case No. 4/70 in the South Choiseul Native Court. The case was heard at Liuliu on 29.6.1970, judgment was delivered on the same day. It was between Leslie Letagara and Koneliasi Joe. It went on appeal to the High Court as Native Land Appeal Case No. 3 of 1971 and the judgment was confirmed. Recently, there has been a case in the North Choiseul Local Court, the court sat on 11 .11. 1994. I have not been able to ascertain the case number. Judgment in the case was said to have been delivered on 29.8.1995. Parties agreed on the date. Unfortunately the record of the Local Court exhibited onto affidavits filed in this case does not show who the parties in the 1994 case were. In the present case Mr. Letagara asks the court to declare that the case between Asavalaka and his clan on the one part, and himself, Letagara, and his clan on the other part, had been effectually and finally decided in the 1970 case, and so Asavalaka's case filed in 1994 between them (Asavalaka and Letagara) should have not been dealt with by the North Choiseul Local Court because the matter was res judicata. If that position is not accepted by this Court, Mr. Letagara will be disadvantaged in two ways. Firstly because the 1995 decision recognised that the case over Dola Land had been effectually and finally decided in 1951, therefore no case about Dola Land between the same parties or their successors in title should have been reopened in 1970 or even in 1994. The 1970 case was of benefit to Mr. Letagara because it divided Dola land and gave one portion to Letagara and his clan and the other portion to Koniliasi and his clan. I suppose Letagara does not want to see the 1970 judgment quashed thereby removing from him the benefit of portion of Dola Land. Secondly the 1995 judgment, despite having stated that the case in point had been conclusively decided in the District Officer's Court in 1951, went on to give certain parts of Dola Land to Asavalaka and his clan who were the plaintiffs. The relevant paragraph reads:

class="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “DECISIONn>

From Gabe to Peba river and upusuraporapo stream and up a up again to Rokaisapisi and straight down to Gabe, belongs to Ngulabachu and his clans.”

That second disadvantage is perhaps the more worrisome to Mr. Letagara.

A case is said to be res judica> if it is brougbrought as between the same parties or their successors in title as in an earlier case, concerning the same subject matter and founded on the same cause of complaint. Res judicata is usually a plea and a special one at that, urging the court to decide it before entering the merit of the case. Given the history of this case, Mr. Letagara was expected to respond to the case papers of the 1994/95 Local Court case served on him. He did not, but I am prepared to accept that even so, given the supervisory power of the High Court, especially about procedure, it was open to him to apply to the High Court to correct what he considered to be a miscarriage in procedure.

The subject matter of this case is Dond, the same land that was was the subject of the case in the Court of the District Officer, decided on 25.10.1951, the Local Court Case No. 4 of 1970, and the case in 1994 in which judgment was given on 24.8.1995. The nature of the complaint in all the cases is customary right over Dola Land. From the record there is one question though, about the extent of the right claimed in each case. The 1970/71 case was silent about the extent of the right of Asavalaka and his clan vis a vis the extent of the right of Koniliasi and his clan, and if Asavalaka had joint right with Koniliasi, the extent of that joint right. It was also silent about the right of Asavalaka (not Koniliasi) vis a vis the right of Letagara. The same applies to the 1994/95 case.

It is agreed that the parties in the 1951 case dide did not include Letagara and his clan. The subsequent case, the 1970 case, however, included Letagara and his clan and, the court divided Dole Land between Letagara and his clan on the one hand and Koniliasi Jog and his clan on the other hand. The more difficult issue is whether Asavalaka and his clan were parties in the 1970 case (1971 appeal case). Letagara says that Asavalaka was a party because Asavalaka is a grandson of Ngulabatu and that Ngulabatu was a party on the same side as Koniliasi Joe a successor to the title of Doreen Ledavetala, in the 1970 case. I think that argument stems from the fact that in a case in 1951, Asavalaka's grandfather Ngulabatu was named jointly as party against one Telokan, not in anyway connected to Letagara and his clan though. That may be so, but it does not appear in the record of the 1970 case and the appeal in 1971. Instead the parties were stated as: "NAME OF DEFENDANT. KONILIASI JOE OF LIULIU. NAME OF PLAINTIFF: LESILI OF LIULIU." If Asavalaka, the present defendant, and his clan were part of the clan of Koniliasi Joe and therefore party in the 1970 case, represented by Koniliasi, the time for making that clear was during the 1970 case itself or failing that, during the 1994/95 case. The Local Courts were in a position to inquire into the consanguinity whereas this Court is not in a position to. Mr. Letagara declined to attend the 1994/95 case.

The defendant Mr. Asavalaka seemed to believe that as betw between his clan and that of Letagara, they have customary right to part of Dola Land, independent of the right of the clan of Koniliasi Joe. They took their claim to Chiefs; claiming against Letagara and his clan. Letagara did not attend. As Chiefs decision binds only upon written consent being filed, and Letagara did not consent, the Chiefs' decision was of no effect. So Asavalaka went to the North Choiseul Local Court in 1994. Letagara did not attend. He now says that the Local Court had no jurisdiction because the case was res judicata. Asavalaka of course wants to effect that part of the judgment which gave him (successor to title from Ngulabatu) and his clan parts of Dola Land given as: "From Gabe to Peba river and up to Susuraporapo stream and up again to Rokaisapisi and straight down to Gabe." Letagara can no longer ignore local tribunals he is now forced to act.

I dothink that I can act on information outside the record of p of proceedings of the local courts, to decide whether Asavalaka was not part of Koniliasi's party or that he was party, in the 1970/71 case. There is simply nothing in the 1970 record that clarified how Ngulabatu and therefore Asavalaka was a party represented by Koniliasi, said to be a successor in the title of Doreen Ledavetala. I am therefore not able to say that the parties in the 1994/95 case which included Asavalaka, were the same as the parties in the 1970/71 case, although I can say that Letagara was a party in both cases. I also do not think that the rights of Asavalaka, succeeding from Ngulabatu, have been defined as between him and Letagara or as between him and Koniliasi Joe, succeeding in title from Doreen Ledavetala in the past cases. I decline to make the declaration asked for by the plaintiff, Mr. Leslie Letagara, that, "the land case filed by the plaintiff (in that case Asavalaka) before the North Choiseul Local Court (the Court) and in which judgment was delivered and dated 29^th August 1995 was barred by the doctrine of Res Judicata…” I also decline to make the complementary declaration that the judgment of the Local Court was, "void and is of no effect." The originating summons of the plaintiff is dismissed.

ts are awarded to the defendant Asavalaka against the plainplaintiff Letagara.

This case brings to the fore the need to have much more exha exhaustive legislation about the jurisdiction of the Local Court and the Customary Land Appeal Court, in the determination of right over customary land. Their jurisdictions in enforcement of their decisions, interlocutory orders and other aspects that enhances their substantive jurisdictions could make them more effective and would clarify many uncertainties.

Delivered this 22^nd day of June 1998

At the High Court,

Honiara

Sam Lungole-Awich
JUDGE